The Senate Judiciary Committee will convene today to hear from Supreme Court nominee Brett Kavanaugh and research psychologist Christine Blasey Ford, the woman who has accused him of sexual assault when both were in high school in the early 1980s (her opening statement is printed here in full). Over the past two weeks, all manner of charges have been lobbed at Kavanaugh, including suggestions that he not only was a drunken slob in high school and college but participated in and helped to organize gang rapes during his years at Georgetown Preparatory School. He has admitted to drinking heavily but flatly denied all accusations of sexual impropriety.
It was clear going into the confirmation process that no Democratic senators would vote for Kavanaugh, who is widely seen as being staunchly anti-abortion and almost certainly in favor of limiting its practices through added restrictions if not an actual overturning of legal precedent granting women a right to terminate pregnancies in their early stages. Only three Democratic senators voted to confirm Neil Gorsuch (Joe Manchin of West Virginia, Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota), presumably out of political concerns, not ideological sympathy with him. And it was similarly clear that all Republicans would vote in favor of Kavanaugh, especially if he assuaged fears among one or two senators (especially Susan Collins of Maine and Lisa Murkowski of Alaska) that he wouldn't challenge the core ruling in Roe v. Wade and subsequent decisions guaranteeing a right to an abortion. From a libertarian point of view, it's disturbing that Kavanaugh's bad positions on the Fourth Amendment and related issues didn't rise to a higher level of scrutiny.
All of that is politicized enough, but the Kavanaugh confirmation has fused with a number of other potent cultural currents, especially widespread partisan hatred for Donald Trump, the upcoming midterm elections, and the #MeToo movement.
We know where political partisans stand, but what about the rest of us who do not identify primarily in partisan terms? The latest Gallup poll on party identification finds just 26 percent of us identifying as Republican and 27 percent as Democratic. Forty-four percent call ourselves independent, a near-record high. Here are three questions political independents should be asking ourselves before today's Senate proceedings get underway:
- Is there any evidence or testimony that would change your mind about Kavanaugh? Some of the accusations are credible on their face, though there has been little in the way of concrete corroboration. Kavanaugh has flatly denied everything and said that even though he drank heavily at times, he never blacked out. If old letters from him confessing guilt and the like emerged, that would undermine his protestations of innocence in a definitive way. The last-minute nature of the gang-rape accusations from Julie Swetnick and her representation by publicity-hungry lawyer Michael Avenatti—whose language is oddly imprecise when actually saying Kavanaugh did this or that—raises doubts. At this point, at least two men have supposedly emerged claiming that they were the men who attempted to rape Ford, but how can anyone really verify their accounts? This battle has very much emerged as a marker for forces that overwhelm the specific individuals at the center of the drama. Even stories about the lurid atmosphere at elite prep schools in the D.C. area (such as this one in Vanity Fair, which has been relentlessly anti-Trump and Republican since at least 2016) cannot locate Kavanaugh at the scene of specific crimes. Most Americans (59 percent) think he should not be confirmed if Ford's allegation is true, but a majority of Republicans think he should be confirmed even if he did assault her.
- Is there any way to depoliticize the selection of Supreme Court justices? Almost certainly not, and it probably would be inadvisable in any case. The Supreme Court is part of the government after all, and the justices read the opinion polls and headlines too. They are selected by one politician (the president) and vetted by others (senators). Getting politics out of the process is impossible and ultimately, elections do indirectly change the makeup of the bench. One argument that Kavanugh is guilty as charged is that the sexual assault accusations didn't come up against Neil Gorsuch (also an alum of Georgetown Prep, by the way). Conservatives counter that activists are targeting Kavanaugh because the seat he might be taking will change the balance of the Court, the midterms are nigh, and this is a way for Democrats to derail Trump's presidency. There's no question that Sen. Dianne Feinstein of California, the ranking Democrat on the Judiciary Committee who knew about and disregarded Ford's allegations since July, acted poorly in the matter. Had she raised these concerns when they first surfaced—or even during the actual confirmation hearings—they could have been dealt with in a less super-charged way. But maybe that was the point of withholding them until the last minute? It's also true that Supreme Court nominations have always been flash points for politicking, even before the watershed moment of Robert Bork back in the 1980s. Yet if there is no way to completely drain politics out of the process, there are surely ways to make Supreme Court nominations less ridiculously and obviously politicized. The problem here resides with the Senate, which in recent memory flipped back and forth between getting rid of the filibuster rule for judicial appointees. Democrats and Republicans have reversed sides on this issue in the most brazen ways possible, reducing legislative process to mere politics. Both houses of Congress have shown themselves to be tied to their parties first, and Congress, a branch of government that should be fully independent of the White House, second. The hyper-politicization of this is all on the Senate's head and it is up to them to fix it.
- Will things ever get back to "normal"? At least since the 2000 election, which was ultimately decided by a coin flip, there has been a pervasive sense of unreality in American politics that calls to mind the novels of Philip K. Dick. The 2016 election, in which the eventual victor promised to contest the results if he lost and the loser is now claiming Donald Trump is illegitimate, is simply the latest episode. But all of this started in earnest at least during the early 1990s, when literally any charge, however unsubstantiated, was being lobbed at Bill Clinton. By 1994, the Rev. Jerry Falwell, erstwhile preacher, president of Liberty Baptist University, and the head of the Moral Majority, was hawking a completely insane documentary that said the president was directly implicated in "countless" murders in Arkansas (and let's not even start talking about Vince Foster). Falwell was not a fringe player and by the time George W. Bush was "selected" president a few years later, similarly grandiose conspiracy theories about him and stolen elections were being showcased in well-regarded news outlets. We have crossed a line where if someone can dream it, someone will publish it. And there doesn't seem to be any directional change on the horizon. We have made it acceptable to say anything, believe anything, and still flourish in the political arena.
It's the tragicomedy of America that we get the government deserve. If there is any grand takeaway from not just the past few weeks but the past few years, it's that all of us, but especially the growing ranks of non-partisan independents need to insist on and demand better from the representatives of the dying major political parties, who have shown a willingness to lie to the American people about everything from state surveillance and war to policy implications to basic biographical details.
Start your day with Reason. Get a daily brief of the most important stories and trends every weekday morning when you subscribe to Reason Roundup.